The U.S. Supreme Court has declined to hear a petition filed on behalf of international law firm Sidley Austin Brown & Wood (Sidley & Austin) regarding the ability of the U.S. Equal Employment Opportunity Commission (EEOC) to pursue monetary damages and other individual victim-specific relief in the ongoing discrimination suit against the firm. The refusal comes just months after the number of workers age 55 and older reached 24.6 million, the highest level ever recorded, according to a study from Challenger, Gray & Christmas. The number of workers over 65 has increased 45 percent over the past ten years, reaching 3.6 million in August, the study found.

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“The Supreme Court’s decision denying Sidley’s request for review follows a pattern of Sidley’s every attempt to avoid potential monetary liability being unequivocally rejected by the courts at every turn,” John Hendrickson, EEOC Regional Attorney in Chicago, explained in a prepared statement regarding the decision.

“Although the Supreme Court did not address the ultimate merits of the question,” Hendrickson continued, “the Court’s decision to deny Sidley’s request for review leaves the Seventh Circuit decision in our case standing as the controlling law for the duration of this case through a jury verdict, and there’s not a shadow of a doubt about what that law is, the EEOC can pursue monetary and other victim-specific relief on behalf of the ousted Sidley partners.”

The EEOC’s case against Sidley arose out of an investigation by the Chicago District Office into Sidley & Austin’s compliance with the Age Discrimination in Employment Act (ADEA). The ADEA applies to individuals over the age of 40 working for an employer with 20 or more employees. It prohibits hiring and firing decisions based on age, as well as mandatory retirement at a certain age, for nearly all employees. In addition, many states forbid mandatory retirement for small employers not covered by the ADEA.

The EEOC’s investigation did not stem from a formal Charge of Discrimination filed by an individual, but rather from a complaint filed within the firm and comments made to the media by Sidley’s management team acknowledging that partners had been downgraded in order to create opportunities for younger lawyers. The statements to the media also referenced the firm’s age-biased retirement policy. The firm downgraded 32 partners in the fall of 1999. Twenty-seven have asked to be represented by the EEOC in the litigation.

The EEOC filed the case in the U.S. District Court for the Northern District of Illinois in Chicago on January 13, 2005. The case, which seeks monetary damages and reinstatement of partners who were down-graded to senior counsel or counsel status, is pending before U.S. District Judge James Zagel. Discovery has been ongoing in the case, because Judge Zagel did not delay the case while Sidley’s request for review to the Supreme Court was being considered.

Relying on Supreme Court precedent, Judge Zagel said: “The EEOC’s right to bring suit seeking individual relief goes beyond that of the individual and reaches the territory of public interest, thereby allowing EEOC to seek relief for individuals, like the affected Sidley partners in this case, who could not, for any variety of reasons, do so themselves.”

The Challenger study did not address the pay and benefits received by older workers. It did, however, point out that fierce competition from baby boomers just turning 60 is likely to make it increasingly difficult for older job-seekers to find positions.